Breath Testing DUI Implications in Washington State from Massachusetts Litigation

Recorded February 25, 2017

Two years ago, Washington State switched to the Draeger breath testing machine — a machine now being questioned for it's accuracy in Massachusetts. The implications for Washington state abound.

Episode Transcript

DillonThis morning why breath testing for people accused of DUI in Boston, may apply to us. You're thinking, Boston, why? there's been some stuff going. By the way, welcome to the Legal Docket, Dillon Honcoop here on KGMI News Talk 790. Out guest this half hour local DUI defense attorney Jonathan Rands. We've talked about breath testing many a — it comes up almost every conversation we have one way or the other.

DillonWe either talk about people's blood or their breath. And of course people know that if someone is pulled over, they're driving and pulled over and they're accused of driving under the influence, one of the primary ways they try to gather evidence on that is to test someone's breath as an estimate as you've explained to me. It's not a direct measurement of how much alcohol is in someone's blood, but an indirect piece of evidence that indicates how much alcohol — I can't remember what the units are. It's 0.08, everybody knows that the legal limit. 0.08 whatever it is; you explain it to me every time. That's the rule; that's how it works, but they're having issues in Boston. And it turns out there could be some connections to Washington

JonathanWell, it's an interesting connection even though, and it's not just Boston. It's the whole state of Massachusettes. So on the 18th of February is when the story broke, but I've been paying attention to the litigation there for about the last year and a half. In the end, in Massachusetts they use the exact same breath test machine that Washington just started using about two years ago.

Massachusetts started using it a year before us, so about three years ago.

DillonOk, let me test my DUI defense trivia here. Because we've done shows about that. It used to be the Datamaster.

JonathanCorrect.

DillonAnd now it's the Draeger.

JonathanCorrect.

DillonDid I get that right? That's the name of the make, I guess, of the new breath testing machine that's becoming — is it rolled out across the state now?

JonathanNot enough units were — no.

[laughing]

DillonOk, well, sounds like government.

JonathanThe machine is about $9 grand and they didn't have enough money to deploy it in all 203 locations. So I think they were only able to procure just shy of 100 machines, so there's still the old Datamaster in place in certain parts of the state. But as far as Whatcom, Skagit, Island, San Juan County, Snohomish County, all of them have been converted. Every location has been changed from a Datamaster to Draeger 9510, which is the model number of the breath test machine.

As far as breath testing goes, it's still exactly the same concept, meaning infrared spectroscopy is the method of breath testing. Although the Draeger 9510 has a second component of testing the breath in the form of and electrochemical analysis, or also known as fuel cell technology. And this is where things get really interesting if we go back to the Massachusetts situation. In Massachusetts the judge ruled that all breath tests, 500 cases of them over the last two years, were excluded or the breath tests were suppressed, because in that state, the head of the crime lab, which would be equivalent to the head of our toxicology lab which in Washington is also head of the breath testing unit or the breath testing department. Ultimately in Massachusetts, they didn't have any protocols written down. They didn't have an standard operating procedures; they didn't have any administrative code procedures; and ultimately their methods of maintaining quality control, if you will, calibration, maintenance, and even fixing for that matter, nothing was written down and everything was what they called "word of mouth." The lab also, that was responsible for this, was "unaccredited." That's a whole different scenario all to itself. But as far as international standards community of scientific accreditation that sort of stuff.

Now, in Washington, our lab is accredited. In Washington we do have written standard operating procedures. Not only do we have written standard operating procedures, but we also have an administrative code, which is sort of the foundation for that. And we also have a little bit of statutory authority, but not in terms of procedures, protocols and maintenance.

However, what Massachusetts when through is not foreign to Washington. Years and years and years ago when the head of the breath testing section was Dr. Barry Logan, he went through on of these scenarios where there was written protocols, and then when the number — the legal limit dropped from 0.10 to 0.8 he re-wrote all the protocols. But when he rewrote all the protocols, which he didn't need to do, he changed a bunch of things which led to wide-spread suppression of blood tests in the state of Washington because it wasn't done correctly. And then after that, he adopted some particular language where certain ... the thermometer that was attached to a breath test machine to make sure it was operating at the right temperature, it needed to be traceable to NIST standards. And that was the subject of several years of litigation where for like three or four years, breath tests just weren't admissible because he grabbed what he thought was a term of art, but ultimately in the scientific community, means something because NIST is the National Institute of Standards and Testings. And when you say that something is traceable to that scientific, you really have to be able to prove it.

Well, when he wrote the protocol, he thought it sounded pretty cool. And ultimately the Supreme Court of Washington ruled that, no if you're going to use language, you need to be precise. So what happened in Massachusetts has happened here, only probably I guess now decades before. What's very interesting about Massachusetts in terms of how is it applicable in Washington if we have standards and procedures, what's most important there is that one of the defense attorneys is on record as saying, we're in an area of the scientific community, breath testing is science. And you really need to be able to "peel back the layers", I believe is his quote in the article, and you peel back the layers to understand how things work. And that's because in science you have procedures, you have protocols and you have very set principles. I mean, there's just no arguing with science, right. You might have a disagreement about facts, but when it comes to science, it is what it is.

Now in Washington, what's going on right now, started in Snohomish County, is we haven't been able to "peel back the layers." There's a case in Snohomish County that started about two and a half years ago where finally a panel of judges there agreed with the defense bar that we were entitled to inspect, analyze, do whatever it is we needed to do of what's called software and source code, because this breath test machine, just like so many other machines in our daily lives right now. Yes, it's a mechanical thing, but at the same time, it has a CPU. And if it has a CPU, or a central processing unit, it has code that tells it how to work, right.

Well, we've been asking for the code and the software so that we could strip back the layers and basically make a challenge to accuracy and reliability of the breath test machine, or at least look at how it works so we could at least understand it and then make an argument, or not. But ultimately you first need to know what you're dealing with.

DillonRight.

JonathanAnd that finally happened in Snohomish County. Now in Whatcom, Island, and San Juan and Skagit's, I think is forthcoming, in my cases I've had the judge agree that even though the material that we've been asking for is not in the hands of the state. Basically the breath test machine was bought by the state of Washington from Draeger. But they didn't buy all the rights to it. And so we have been asking for it and this prosecutor's office would say, hey you're entitled to what you're asking for, but we don't have it. And since we don't have it, we don't have to do anything.

Well, when you look at the rule in terms of discovery, the judges disagreed in the sense that you may not have it, and that's fair enough, but if you have access to it or what you would normally have care and control of, you at least have to ask. So I had the judges order the prosecutor and they asked for this material, and guess what? The company said, we'll give it to you!. But if you're going to have it, first of all, if you're going to use the same expert as in Snohomish County, we're not going to give you the same thing as what we've already given him. No, I'm not going to use the same expert. So they said, ok, you can have it, but you have to sign a protection order and everybody that works with it because it's proprietary.

DillonRight, right.

JonathanYou can inspect it all you want, but when you do that, you can't talk about it in terms of outside of each of these cases.

DillonThat becomes, like, industrial espionage or something, right?

JonathanYeah.

DillonBecause you could give away trade secrets to let's say the Datamaster people who want to copy it or something.

JonathanYep. And the expert is prohibited from learning everything they possibly can and going out and starting their own breath testing. Not that they have any interest in that, but it makes sense. So we're finally off the ground now and beginning to peel off the layers and that's why the Boston / Massachusetts stuff is so interesting to me. Because it's exactly the same breath test machine. I've been in touch with some of the lawyers involved in that. More importantly, I've had some direct conversations with a couple of the experts that we're talking about just along that litigation how the Draeger actually works and functions. Because they did get into some of the source code issues there. So it's made for a very —

DillonWere there problems with how the thing is — how the code works?

JonathanI think so. Well, it's not so much problems with how the code works. In my opinion, and of course everyone will disagree with this depending on which side of it you're on, in my opinion, what the code tells the machine to do in certain circumstances is really really, for lack of a better word, suspect.

DillonHmm.

JonathanWhen you have dual-cell technology, the goal of that is that you analyze breath with this type of technology and you analyze breath with the other type of technology — infrared spectroscopy and electrochemical. And you should get the same result or very close to it. And that dual-cell technology is what they hold this machine up to be the best thing since sliced bread because, ah! we can rely on this result because not only is it one technology, it's two and they agree with each other. I think it's within 3%.

But when you look at the code, my understanding from limited discussions — and even though there's a protection order that will be in-play, it doesn't stop me from talking about it, it prohibits me from talking about what the actual code is and things like that — but ultimately, we know two things that are going to come out of it: the code does speak specifically to temperature of breath at the time of testing and there is reams of scientific evidence out there that establishes at the time of breath testing the breath sample should be the core body temperature, which is 37ºC. And every 1ºC above or below equates to 6.48% higher or lower. And if the internal chamber of the breath test machine shuts down, if it gets below 29 and shuts off if it goes above 50 and therefore we have a temperature in the mid-40s and it tells you what the temperature is, you're 10º above what your core body temperature would be. And if you multiply that by 6.48% per degree you get a pretty high inflated —

So there's that issue.

DillonHmm, yeah.

JonathanThe bigger issue that I see coming is because the breath test machine uses fuel cell, but it only measures a very small part of it. Here's the biggest conundrum that I see with it. The actual breath test chamber is 70CCs. That is where the air is analyzed through infrared spectroscopy. And then they draw 1CC off of that to run it against fuel cell technology. And then those things have to compute, or compare.

I don't see the value in taking a very very, like 1/70th of one and say, oh yeah they totally compare, but more importantly, that fuel cell deteriorates over time. And it drifts over time. I believe what we're going to find, is that the source code tells the fuel cell even if it's drifting, to not report exactly what the number is but to stay in line with the infrared spectroscopy cell. And that, I think, goes to the quality and credibility.

DillonYou think that the company would have given up the source code for your analysis if they knew that was actually in there?

JonathanThey are giving up the source code because the court has basically ordered them to.

DillonMmhuh. You think they're nervous about it?

JonathanProbably not. I mean, there's a lot of literature out there that says that no matter what kind of analysis, the source code and the software will never change the actual result. Of course, that's the subject of a lot of speculation, well, not even speculation, it's the subject of, I think, peer-reviewed papers in the industry that are proponents, let's say, of breath testing.

DillonVested interest.

JonathanYeah. I think what really matters is breath testing needs to be explained in a way a jury can understand it. Because a jury's job is to determine whether they believe a breath test is accurate and reliable. And if they don't believe it's accurate and reliable, then they don't put a lot of credibility in that number.

DillonAnd we went into a lot of technical stuff, but that's what it all boils down to. Is the breath test actually telling you what that person in this case, whatever it is, actually had that amount of alcohol on-board in their bloodstream.

JonathanRight. And in Massachusetts, the judge has thrown things out because he said, there's no clear standards to even measure it against to even begin to say it meets scientific criteria. Now Washington's a little more rigorous that that, but still, you're right, it absolutely comes down to what do six people, or in a felony case, what do 12 people, whether they believe it's accurate and reliable. And if they don't, well then they are instructed to give that breath test number, whatever weight it deserves. Of course in Washington there 's another way to prosecute, which is Affected By. But as far as breath testing goes, it's pretty spectacular stuff that's happening in the north east.

DillonJonathan Rands, local DUI defense attorney, obviously very, very knowledgable about a lot of elements of this stuff. And we're going to continue in just a moment. We do have to take a brief time out. If you do want to reach Jonathan, his office is in Fairhaven. (360) 306-8136 the phone number. The website is jrandslaw.com. Rands, his last name, r-a-n-d-s, very simply. jrandslaw — all one word — check out his website. And one more time, the phone number is (360) 306-8136. We're going to continue this conversation when we come back.

--ad break--

DillonWe're back; we continue on the Legal Docket, Dillon Honcoop here. Jonathan Rands local DUI attorney our guest in studio this Sunday morning. I don't think I ever said good morning to you officially. You were in the studio and we took off.

JonathanYou were so excited.

DillonWe were on the air. Here we go.

JonathanYou were so excited to talk about breath testing, here we went.

DillonWe're talking about breath testing this morning and some science that they're getting into in Massachusetts. This was in the Boston Herald. And Jonathan telling us this morning how this could relate to some things that go on with DUI cases, and breath testing in specific, here in Washington State as they've rolled out new technology. And we've talked about that before here on the program. They're finding some issues. It sounds like to be affective at this, in your position Jonathan, what your'e going after here, you need to be an expert at the law as a lawyer. you also need to be an expert on chemistry and physics. And now you're adding in computer programming on top of that. I mean, how many more things are you going to roll into this ball of wax?

JonathanI don't think that you need to be a computer programmer or software genius. You certainly do need to have access to somebody that understands that. And fortunately I do. But anytime you dig in and start learning about something, you frequently come across things that, oh, I didn't know I was going to start embracing this area. But you're right, chemistry and science was never my strong suit in high school. And I went into law so I didn't have to deal with it. And here I am.

DillonHere you are!

JonathanI do one of the most technical defenses that's out there when it comes to criminal defense. But at the same time, it's about exploring and expanding not only your own personal horizons, but making sure that a jury, and even judges for that matter, understand what's going on. It always sounds really impressive. Yeah, well the person blew into the Draeger 9510 and it analyzed their breath though infrared spectroscopy and dual-cell technology and the result was a 0.10. And people are swayed by that. It sounds impressive, right? But when you boil it down and start talking about infrared spectroscopy is really a lightbulb at one end of a tunnel and you're trying to measure the light that comes out at the other end and the molecules of alcohol block it, sounds a lot different. And then you're like, how does the breath alcohol actually be —

DillonA lot more like a shot in the dark, is what it sounds like.

Jonathan[laughing] How does it acutally be computed? Well, it sends a signal which is converted by a formula and it spits out the ticket.

DillonTo take it back to the philosophical level, not to wax too philosophic here, really ,it's about justice. It's about what is true in this case.

JonathanYeah.

DillonIf you're going to accuse me of something the way our justice system works, is that has to be based on some measure of reality. There are absolutes and there are ways to test that.

JonathanYou should be using the best evidence available. It's why DNA evidence has changed so many people's lives that were on death row. It's why it exonerated numerous people who were accused of horrific crimes and ultimately were exonerated after several years. I mean, science permeates almost every aspect of criminal law and criminal defense. Unless you have eye-witness testimony, everything else that we do is generally based upon a swap, a scan, a fingerprint. I mean it's all based in science. Absolutely. I mean I say we should be using the best technology possible and I guess those examples that I have are ones where we didn't have it. But it also is a warning, if you will, that if you do have the ability, you should be using it and not saying it's good enough "for government work."

DillonRight. Jonathan Rands local DUI attorney. Again, his practice is right here in Bellingham, in Fairhaven. (360) 306-8136 is the phone number to reach his office directly. And his website is jrandslaw.com. Lots of great information there. Of course, his phone number if you weren't able to write it down quickly is there on his site. But also a wealth of other information about these cases, about Jonathan's philosophy, tons of research he's done reflected in blog posts and different things he has available at jrandslaw.com. His last name is spelled r-a-n-d-s. Check it out online. Jonathan thanks for being here.

JonathanThanks for having me.

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